103. The draft Bill follows the recommendation of
the Law Commission that future legislation on mental incapacity
should include a 'general authority to act reasonably.'[99]
For the large number of people who would be unlikely to have made
provision for their incapacity through the formal mechanisms proposed
in the Bill (advance decisions or LPAs), the operational reality
of the general authority is likely to be crucial. The intention
of providing a 'general authority' would be to clarify the circumstances
in which actions and decisions could be taken on behalf of adults
who lack capacity without obtaining formal powers, and to include
such 'informal' decision-making within the statutory framework
set out in the Bill.[100]
We support this objective, but we are uncertain whether the general
authority, as currently drafted, provides sufficient protection
to people lacking capacity.

105. A person's mental functioning may be affected
by mental or physical illness, a head injury or their consumption
of alcohol or other drugs. These factors could limit the person's
ability to take decisions for themselves. At present, guidance
on who should undertake decisions or actions on behalf of that
person is absent from statute. Common law has therefore developed
to fill the 'gap'. The case of re F[102]confirmed that where an action taken on behalf of an individual
who lacked the capacity to consent to that action was necessary,
reasonable and in their best interests, that (otherwise unlawful)
action could be judged lawful under the 'principle of necessity'.
The principle of necessity is not equivalent to having
consent but constitutes a defence if an action is subsequently
challenged.

A doctor who physically examines and subsequently operates on an unconscious person can argue, if later challenged, that although the patient had not given consent to the procedures, their action was necessary to save their life. Similarly, a nurse who undresses and washes a person with advanced dementia can argue that this action was necessary for their health.

106. Despite the existence of the principle of necessity, the
Law Commission report identified uncertainties in the present
law regarding informal substituted decision making.[103]
Much of the evidence we received also made clear that the law
regarding informal substituted decision making is not widely understood.[104]
The Making Decisions Alliance for example, told us:

" many organisations representing carers have been
concerned that they are unsure about how to make decisions which
represent the views of people who lack capacity and they want
clarity about what day-to-day decisions they can make without
going to the courts for formal authorisation, so the general authority
is positive in the sense that it will dispel the doubts and confusion
from carers about what they can do."[105]

107. We heard evidence that reliance on the common law is not
an adequate alternative to legislation in this area, not least
to ensure compliance with the Human Rights Act.[106]
The present common law approach does not provide adequate protection
for those providing support to individuals who lack capacity.
The absence of statute has meant that there has been no formal
guidance on informal substituted decision making, as would be
provided by a Codes of Practice. Nor are the duties and responsibilities
of those making decisions on behalf of others immediately apparent.
Furthermore in the absence of any ready means of appeal, the rights
of people who lack capacity are not adequately protected.[107]
By creating a general authority, the draft Bill codifies in statute
what has become practice under common law, incorporating the principle
of respect for the autonomy of a capable person. The intention
is to clarify the circumstances in which actions and decisions
can be taken on behalf of adults who lack capacity without obtaining
formal authorisation, while holding decision-makers accountable
for their actions. It is not intended that the general authority
would convey any new or additional powers on anyone acting on
behalf of an incapacitated person that they would not already
have under existing statute or the common law. Thus, under the
general authority it would be lawful for a person to act for someone
who lacks capacity where in all the circumstances it is reasonable
for the person to take that particular action and the act is in
the incapacitated person's best interests.

A doctor wishing to examine someone would first be expected to determine the person's capacity to consent to examination. If the person lacked capacity to consent then the doctor could lawfully examine them if it was reasonable and in that person's best interest to do so. As is currently the case, no one else has the right to consent to medical treatment on behalf of the incapacitated person but the 'general authority' would provide the legal authorisation for the doctor to carry out the examination in the absence of consent.

A carer in a group home regularly goes shopping with Mr G., a man with learning disabilities. Mr G likes to look after his own money but sometimes gets into arguments over how much he needs to give to the shop keeper. He can recognise coins but he is uncertain how that relates to the price of the goods and he also becomes very confused over change. He has been known to give away more money than he should and also to argue because the shop keeper requires more to fully pay for the goods. His carer is uncertain how to resolve this dilemma. Given that it is clear on assessment that Mr G lacks the capacity to make such financial decisions the general authority would allow the carer to ensure that the proper price was paid for the goods providing it was in Mr G's best interests. In deciding what was in his best interests the carer would have to take due note of the fact that Mr G wished to buy the goods in question and to work with Mr G so that he felt involved in the transaction. As set out in the Codes of Practice any intervention should be the least restrictive and the most enabling. Mr G should hold his own money and be supported in the choosing and budgeting process. The carer would also be enabled through the General Authority to ensure that Mr G was not taken advantage of or inappropriately refused to pay.

Mrs R is caring for her husband who has Alzheimer's disease. He has become increasingly confused and forgetful. He is neglecting himself and can be at risk as he wanders at night and walks out of the house saying he is going to work. He sometimes goes for respite care at a Local Authority run rest home. His level of confusion varies but he is often uncertain where he is or who members of his family are. His wife and family have to provide for most of his day to day needs and sometimes they have to stop him leaving the house for his own safety. Such actions are acceptable under the General Authority as it is clear that Mr R has lost the capacity to make these day to day decisions for himself due to the presence of Alzheimer's disease, and it is in his best interests that his basic needs are met and that he is prevented from wandering out of the house unaccompanied. The Codes of Practice provides guidance for the family and also to the Local Authority home staff who need to balance respect for his wishes, as far as they can be ascertained, with their duty to care for him in manner that is the least restrictive and most respective of his and his family's wishes.

108. We are convinced that the present situation regarding informal
substituted decision making would benefit from clarification,
but very few witnesses expressed unqualified support for the general
authority as a means to achieve this goal. We have heard evidence
of a wide range of concerns regarding the provision which we discuss
in more detail below.

110. We have come to the conclusion that the term
'general authority' itself has contributed to the misinterpretations
apparent within the evidence we have received. The word 'authority'
implies an imposition of decision making upon an incapacitated
individual rather than an enabling process designed to enact decisions
taken in their best interests. This may have contributed to perceptions
of the general authority as likely to promote 'overpaternalistic
attitudes'[111] towards
incapacitated individuals. We are convinced that semantic issues
are important in affecting public perceptions of the draft Bill
as well as in determining legal interpretations of the provisions
it contains.

111. We recommend that clauses 6 and 7 be redrafted
to clarify the legislative intent of the general authority, in
order to counter what appear to be widespread misunderstandings
of the concept and its purpose. It might also be helpful for the
Department to consider an alternative to the term 'general authority'
which would avoid its misleading connotations and clarify that
it is intended to convey permission to act in the incapacitated
person's best interests in circumstances currently covered by
the Common Law.

112. Clause 6(1) permits the general authority to
be relied upon by anyone 'providing any form of care for another
person'. Several witnesses expressed concern that the Bill provides
no definition of what such 'care' would entail.[112]
The need to define the term 'care' is particularly relevant to
the circumstances of day-to-day decisions taken (under the general
authority), especially by informal carers or other non-professionals.
We recommend that the Department should clarify the term 'care'
in clause 6 (1) and in any guidance given under the Codes of Practice.

113. In addition, we recommend that a sustained
and comprehensive training programme for professionals, and a
public information campaign for informal carers should be implemented,
in order to provide these groups with an accurate understanding
of the general authority.[113]

114. We feel however, that even if the drafting and
terminology of the general authority was clarified, a number of
substantive areas of concern would remain. These areas of concern
(discussed below) include:

116. Organisations and self-advocacy groups of people
with learning difficulties told us they are concerned that the
general authority would prioritise the protection of carers over
the best interests of incapacitated individuals.[115]
Witnesses from the Association of Directors of Social Services
described the general authority as a 'carer's charter' which could
reverse the progress made in person-centred planning in recent
years.[116] We are
of the opinion that the intent of this Bill is to ensure that
all those with impairments in mental function that might affect
decision-making capacity have the right to make those decisions
that they have the capacity to make and to have those decisions
respected. In the case of those decisions and situations where
such capacity is lacking, the person concerned should be involved,
as far as it is possible, in helping to determine the outcome
of any decisions made by others, so as to ensure that it is in
their own best interests and that it gives due respect to any
wishes they have expressed in the present or the past. We are
concerned that the provision of the general authority should not
undermine the 'enabling' ethos of the draft Bill.

118. We share the concern expressed by many of our
witnesses at the lack of guidance on the face of the Bill as to
the full scope of the general authority.[119]
From the examples given in the 'Commentary and Explanatory notes'
accompanying the Bill[120]
it seems that the two key factors determining whether an act or
decision would be reasonable under the general authority are its
significance and the length of time in which it must be undertaken.[121]
Where a decision is of relatively low significance (deciding what
to wear or what to have for breakfast) it would be reasonable
for it to be taken under the general authority providing there
was a reasonable belief that the person lacked the capacity to
make the decision and the decision was in their best interests.
Such a decision could reasonably be taken however long was available
for it to be undertaken. Where a decision is of more significance
(where to live or whether to undergo a medical procedure), the
time available for the decision to be undertaken becomes relevant.
Significant decisions may only be taken under the general authority
if there is insufficient time to seek formal decision-making authority.
Thus for example, a doctor who amputated a limb from a temporarily
incapacitated individual in order to save their life could retrospectively
claim to have acted under the general authority.

119. We strongly recommend a redrafting of the
clauses concerning the general authority in order to clarify that
its use is intended to be limited to day-to-day decision-making
and emergency situations.

120. The lack of guidance on the face of the Bill
makes it very difficult to determine where the boundaries fall
between the general authority and the formal powers provided within
the Bill. As the Making Decisions Alliance told us,

"with the general authority being so broad,
we do not really see many situations where a family or carer would
feel the need to become a deputy. That is a problem which again
is a reason why the general authority needs to be more circumscribed."[122]

121. We heard evidence that the general authority
would be open to significant misuse if the concept and its scope
were not better defined.[123]
Many of the concerns centred around the potential financial abuse
of incapacitated individuals.[124]
It was suggested that such abuse could be limited by restricting
the amount of money which could be used or invested on behalf
of an incapacitated individual and, for example, excluding the
sale of their property[125]
(see para 129 for our recommendations on exclusions from the general
authority).

122. The question of the scope of the general authority
is complicated by the fact that the same decision might be more
significant for one individual than for another. Where an individual
is only capable of making relatively simple choices, these decisions
take on proportionally more significance for that individual.
Witnesses from self-advocacy organisations of people with learning
difficulties told us that,

"The general authority to act is open to
abuse. Paid carers and relatives could say that we cannot make
a choice because it is what is best for them rather than best
for people with learning difficulties... Our members have told
us about their relatives and paid carers bossing them about, this
shows it is unwise to put our faith in these people to really
allow us to make our own choices."[126]

123. Under the general authority it would be relatively
easy for someone to take 'day to day' decisions on behalf of an
incapacitated individual who in fact could have made these decisions
with proper support.[127]
We recommend that the Codes of Practice relating to the general
authority should include a specific reminder that all practicable
steps must be taken to help an incapacitated person contribute
towards the process of every decision made on their behalf, however
minor.

"The Law Society has always welcomed the
general authority on the basis that there would also be a public
law anti-abuse provision and we are now being asked to look at
a Bill which has one without the other and we are not surprised
that a number of organisations are concerned because it appears
slightly lopsided."[131]

Mr. Ward of the Law Society of Scotland told us he
was 'pretty sure' that if the general authority were to be introduced
as it stands,

"you would have lots of litigation for at
least a decade In some ways if there was not lots of litigation
I would be even more worried because people would just be going
ahead and using the general authority in all sorts of situations,
appropriate or inappropriate, without challenge."[132]

125. It was felt that it would not be easy for individuals
acting under the general authority to be held accountable for
their actions.[133]
Various witnesses proposed ways of remedying this situation. The
Making Decisions Alliance suggested that there should be a requirement
for the general authority to be 'triggered' as part of a case
conference or review discussion, but this proposal seems to misunderstand
the nature of the general authority (see paragraphs 109-111 above).
The Association of Directors of Social Services suggested that
local authorities should have stronger powers, or even a statutory
duty, to intervene in cases where there was concern over actions
taken under the general authority.[134]
Other witnesses suggested that individuals undertaking actions
under the general authority should be required to keep records
of their actions.[135]
Professor Williams for example, suggested a requirement to keep
simple pro forma accounts could be placed upon those acting under
the general authority.[136]
It seems to us that such a requirement would be overly bureaucratic
for carers engaged in the day-to-day care of incapacitated individuals.
It is also difficult to see how such requirements could be enforced
without the introduction of a formal system of monitoring. We
conclude that the Codes of Practice accompanying the draft Bill
should emphasise that all persons undertaking actions or decisions
under the general authority must be aware that they may subsequently
be called upon to justify their actions. They should therefore
maintain sufficient records in order to be able to show that their
actions were reasonable and in the best interests of the person
in question.

126. The Law Commission's recommendations included
detailed proposals for the independent supervision of medical
and research procedures involving people lacking capacity.[137]
For example, it was proposed that a second opinion should be required
for specified serious or controversial treatment decisions (for
example abortion), in a similar manner to the requirements under
the Mental Health Act.[138]
Responding to this proposal, Lord Filkin told us,

"The Code of practice will give detailed
guidance on the circumstances where a doctor or other health professional
should obtain a second opinion. However, I don't think that an
actual requirement for this to happen in certain circumstances
would be either achievable or desirable on the face of the Bill
itself."[139]

127. We disagree with Lord Filkin's assessment.
We recommend that consideration be given to imposing a statutory
requirement for an independent second medical opinion to be sought
in relation to the need for serious or invasive forms of medical
treatment.

Furthermore we conclude that greater availability
of advocacy services would provide a counter to the potential
for an excessive or inappropriate use of the general authority
[140]

129. We recommend that the Bill makes provision
for a Regulation making power to enable further specific decisions
to be excluded from the general authority and therefore always
taken to the Court of Protection. This should include:

those decisions currently
requiring court authorisation such as requests for the sterilisation
of people lacking the capacity to consent;

the withdrawal of artificial nutrition and
hydration from patients in a persistent vegetative state;

any procedure of an experimental kind that
might carry significant benefits but which also carries significant
risks (a situation exemplified by recent attempts to treat a person
with new variant CJD); and,

131. The Law Society recommended the involvement
of mediation services in cases where resolution through a court
would not be a proportionate response.[145]
We accept the value of mediation services and would like to
see reference in the Codes of Practice accompanying the draft
Bill to their utility as an alternative mechanism of dispute resolution.
In situations where strong disagreements remain over what is in
a person's best interests, the dispute should always be referred
to the Court of Protection.

133. We welcome Lord Filkin's acknowledgement
that the Department needs to look again at the way in which the
general authority is set out in the draft Bill.[148]Unlike the Adults with Incapacity (Scotland) Act 2000
the general authority ensures that all decisions relating to personal
care and health matters are brought within a statutory framework.
Despite our concerns, we are convinced that with greater clarification
of the intention and scope and with wider and more rigorous safeguards,
the general authority would significantly improve the legislative
framework for substituted decision making in England and Wales.